Any obligations the company have towards Alan are as a disabled person, but before we can go any further with this, it is necessary to investigate what the legal requirements are for someone to be considered 'disabled'. Any legal provisions and protection available to disabled people are laid out in the Disability Discriminations Act 1995. Even if no discrimination has occurred this act contains the principles, which must legally be followed by employers regarding their duties owed to disabled employees or potential employees (there are provisions in the Act for disability discrimination in recruitment and selection).
The Act provides a framework definition, which is clarified by the Disability Discrimination (Meaning of Disability) Regulations 1996. According to the Act's definition of disability, there must be an impairment, which has long-term and substantial adverse effect on the person's ability to carry out normal day-to-day activities. There are four parts to the definition: – Using these requirements, is Alan disabled? Is his impairment physical or mental? Yes his impairment is physical he suffers from multiple sclerosis. Is the effect of his impairment long-term?
Yes his illness is progressive and will last the rest of his life. Is the adverse effect of the impairment on his ability to carry out his day-to-day activities substantial? Yes, tiring more than the normal person is substantial because his job involves operating machinery, for which you have to concentrate and be fully alert at all times. Does the impairment affect his ability to carry his normal day-to-day activities? Yes a person's job is very much a part of their normal day-to-day activities and his job is affected and will be more so in the future.
What, legally, should the company do for Alan as a disabled employee? As required by section 6 of the act: ' The employer must make the necessary reasonable adjustments to accommodate the person' This duty is at the heart of the legislation. It is a duty to take such steps as is reasonable in all the circumstances of the case to take, in order to prevent any arrangements made by the employer, or any physical feature of the premises occupied by the employer, placing the disabled person at a substantial disadvantage by comparison with non-disabled workers.
The Code of Practice suggests as one rule of thumb that it would be reasonable to expect an employer to spend at least as much as it would cost to recruit and train a replacement for the job. 2 An example of an employer's failure to comply with the Act is demonstrated in a case whereby the employer refused the employee recovering from ME to work at home. 3 Gillian should in the meeting discuss making suitable adjustments to Alan's working conditions and or working times, perhaps a fan in his work area to prevent him from having to work in hot conditions and more rest periods to help with the tiredness he currently suffers.
If provisions were not made for Alan, a breach in the employer's duties would have occurred and he could claim for disability discrimination, as he would have been treated less favourably than a non-disabled employee. Even had Alan not been disabled, under the implied in law terms of the contract of employment, it is the employer's duty to provide a suitable working environment; this would imply an environment where everyone is comfortable and satisfied.
An example of a case where an employee was not satisfied involved a secretary in a firm of solicitors who was a non-smoker and who worked in a smoky environment. Her work area was rearranged but she still experienced discomfort, she left, which was unfair dismissal as the employer was in breach of this implied term of the contract, the employer could have done more. A case must be judged according to how it looked at the time of dismissal. The reasonableness of the employers decision to dismiss must be judged according to what the employer knew and ought to have known at the moment of making the decision".
If the procedural failure affects the state of the employer's knowledge, for example, where the employer has not properly investigated, or has not given the employee an opportunity to explain, then the dismissal will be unreasonable. Here the employer has given the employee a chance to explain making procedural steps taken seem like they are the right ones, he also has a further reason as to why the employee must remain dismissed : " If I allow you to get away with hitting a manager for no reason then we wont be able to maintain discipline. I'll send you one month's pay in lieu of notice".